The present regular second appeal by the legal

representatives of defendant No.1-purchaser against the

judgment

and

decree

dated

21.08.2013

in

R.A.No.132/2009 on the file of the III Additional Senior

Civil Judge, Gulbarga, whereby, the first appellate Court

reversed the judgment and decree dated 05.09.2009 in

O.S.No.1193/1989 on the file of the III Additional Civil

Judge (Jr. Dn.) and JMFC at Gulbarga and decreed the suit

holding that the sale deed executed by defendant No.2 in

favour of defendant No.1 is not binding on the plaintiffs

and the sale deed is valid and legal only to the extent of

the share of defendant No.2 and that defendant No.2 is at

liberty to seek for general partition against the other

coparceners of the joint family and get his share under

due process of law.

The parties herein are referred to as per their

ranking before the trial Court for the sake of convenience.

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This Court, while admitting the appeal on

13.09.2022,

has

framed

the

following

substantial

questions of law:

"1. Whether the First Appellate Court is justified in

decreeing the suit of the plaintiffs on the

premise that suit property is joint family

property

despite

the

admission

by

PW.1

regarding partition having taken place amongst

the family member 14 years prior to filing of the

suit in which the suit property had fallen to the

share of defendant Nos.2 and 3 and further

erred in directing defendant No.1 to seek

general partition to work out his equity?

Whether the First Appellate Court is justified in

considering the case of the plaintiffs even in the

absence

of

specific

pleading

providing

particulars with regard to the fraud alleged to

have been played by defendant No.1 on

defendant Nos. 2 and 3?"

Sri. Narendra M. Reddy, learned counsel for Sri.

Manvendra Reddy, learned counsel for the appellants and

Sri. Ajaykumar A.K., learned counsel for respondent Nos.1

to 3 have been heard on the substantial questiond of law

framed by this Court.

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Brief facts of the case are that:

Plaintiffs and defendant No.3 are the children of

defendant No.2. The plaintiffs' father-defendant No.2 has

received the suit schedule property in a partition and

plaintiffs and defendant Nos.2 and 3 are the members of

the joint family. It is contended that defendant No.2 was

old and was unable to understand the worldly and

defendant No.1 by playing fraud and by undue influence

has got created the sale deed in his favour. It is

contended that defendant No.2 had no right to execute the

sale deed since the property was the joint family property

and on the strength of the sale deed, defendant No.1 is

trying to alienate the suit schedule property.

6.

Pursuant to the summons issued by the trial

Court, the defendants appeared and defendant No.1 filed

his written statement inter alia contending that the said

defendant has purchased the suit schedule property for a

valuable consideration from defendant No.2-father of the

plaintiffs as a karta, and defendant No.3 as a member of

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the joint family and the sale deed was executed by

defendant No.2 for legal necessity. The contention of

plaintiffs is that defendant No.1 has played fraud and by

undue influence has got created the sale deed executed in

his favour is totally denied. The very contention of

defendant No.1 is that the sale was for legal necessity.

7.

The trial court on the basis of the pleadings,

framed issues. In order to substantiate their claim,

plaintiff No.1 examined himself as PW.1, plaintiff No.3 as

PW.2, and the mother of the plaintiffs and wife of

defendant No.2 was examined as PW.3 and got marked

documents at Exs.P-1 to P-11. On the other hand, the

legal representative of defendant No.1 got examined

herself as DW.1 and one witness as DW.2 and got marked

documents at Exs.D-1 to D-4.

8.

The trial Court on the basis of pleadings, oral

and documentary evidence held that:

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i) The plaintiffs have failed to prove that the sale

deed executed in favour of defendant No.1 is not b